KISHORE KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application is directed against the order dated 27.11.2010 passed by the learned Sessions Judge-cum-F.T.C.II, Giridih in Cr. Rev. No.142 of 2006 whereby and whereunder learned Judge having set aside the order dated 1.8.2006 passed in Complaint Case no.354 of 2006 took cognizance of the offences punishable under Sections 420 and 406 of the Indian Penal Code against the petitioners. Before adverting to the submissions advanced on behalf of the parties, case of the compliant is to be taken notice of. The father of the complainant was tenant on a portion of a house having holding no.539 (part) situated at ward no.1, Giridih Municipality. The petitioners being the owner of the house conveyed to the complainant-opposite party no.2 that they are intending to sell the house for a consideration of Rs.14,11,000/-. The complainant agreed to purchase it and hence, a sum of Rs.2,00,000/- was paid as an advance. Thereupon, an agreement of sale was executed which got registered on 6.9.2005. On 18.10.2005 further sum of Rs.6,00,000/- was paid through Bank draft. Thereupon it was conveyed to the complainant that they will be vacating the house in question and will be giving vacant possession of it but instead of giving vacant possession, a legal notice was given wherein it was stated that they are not interested in selling the property and that they are ready to refund the money.

(2.) On this allegation, a complaint was lodged, vide Complaint Case No.354 of 2006 alleging therein that the petitioners by not executing the sale deed and by not returning the money have committed offence of cheating and misappropriation. Upon enquiry, it was held by the learned Judicial Magistrate that no criminal offence is made out, rather the case is of civil liability and hence, it was dismissed under Section 203 of the Code of Criminal Procedure. Being aggrieved with that order, the complainant preferred Cr. Rev. No.142 of 2006 which was allowed by holding that the accused persons had taken advance for selling the property but instead of selling it, they revoked the agreement and as such, sufficient material is there to show that the accused persons committed offence under Sections 406 and 420 of the Indian Penal Code. That order is under challenge.

(3.) Learned counsel appearing for the petitioners submits that the petitioners at best can be said to have violated the terms and conditions of the agreement whereunder the petitioners were supposed to execute sale deed and to give possession of the house in question. In the circumstances, question of committing offence of cheating or misappropriation never arises.